Intervenor: Vol. 23 No. 2 April - June 1998

CELA Casework Update: Thumbnail Summaries of Selected CELA Cases

Over the past few years, CELA has taken on a number of ground-breaking cases on behalf of citizens and in defence of environmental regulation in the public interest. Here is a selection of cases, some of which are still active.

All requests for representations are considered by the Legal Priorities Committee of our Board utilizing a range of consideration including:

  • clients needs, the merits of each case and staff resources available;
  • the need to intervene to protect important legal precedents, points of law, legal rights and tools which allow the public to seek environmental justice;
  • the environmental significance of cases; and
  • compliance with Legal Aid Financial Eligibility Criteria.


Barker v Director, MoE

CELA represented a residents group that was concerned about a proposal to reactivate a long-dormant landfill site near Chatham. In 1996, the Director of the Approvals Branch, Ministry of the Environment, issued an amendment to the site's licence that would allow the site to re-open if certain conditions were fulfilled by the private proponent. CELA's clients applied for leave to appeal the amendment under the third-party appeal provisions of Ontario's Environmental Bill of Rights (EBR).

In a landmark ruling, the Environmental Appeal Board granted CELA's clients leave to appeal the amendment. The full appeal hearing commenced in late 1996, but was adjourned sine die when the parties reached a settlement that, among other things, will result in final site closure and revocation of the site licence. This was the first case in Ontario in which leave to appeal was granted under the EBR, and some of the Board's legal and jurisdictional rulings in this matter should assist other groups in obtaining leave to appeal in other cases.

Berendsen v Ontario

CELA continues to serve as counsel for a dairy farmer near Teviotdale, Ontario. In essence, the client's claim alleges that waste asphalt from a provincial highway project was buried on the farm property, and contaminants from the asphalt leached into the shallow groundwater and the farmer's wellwater. Among other things, these contaminants have caused significant problems with cattle health and milk production, forcing the farmer to abandon the property and re-locate his family and dairy operations to another farm. The matter may go to trial in the Fall of 1998. Developments will be reported in future Intervenors.

CELA v OMNR

In late 1996, CELA initiated a judicial review action against the Ontario Minister of Natural Resources concerning the implementation of the Environmental Bill of Rights (EBR). Under the EBR, the Ministry of Natural Resources was required to develop a "classification regulation," which is a regulation that classifies which of the approvals issued by that ministry are subject to the EBR. It is only after this regulation is promulgated that citizen rights are triggered. The regulation was to be developed "within a reasonable time" after April 1, 1996. Some three or four months after that time, CELA informed the Ministry of Natural Resources that a "reasonable time" had passed and that the regulation should be posted on the EBR Registry. After repeated attempts to persuade the Minister to develop the regulation, CELA filed a Notice of Judicial Review on December 20, 1996. After application was perfected on February 28, 1997, counsel for MNR stated that the Ministry would be posting its proposal for a classification regulation on the EBR Registry. Since a proposal was finally developed, CELA's application was withdrawn.

Hodgson and the Innisfil Landfill

CELA continues to serve as counsel for a family living beside the Innisfil Landfill site near Barrie. The facts of the case are succinctly summarized in a Joint Board decision which refused to permit expansion of the site. Leachate (contaminated groundwater) from the landfill site has trespassed onto the family's property, and the family has experienced significant nuisance impacts. A number of legal activities occurred in relation to this matter: (1) the Environmental Compensation Corporation awarded the family interim compensation for the spill of leachate; (2) the family reached an out-of-court settlement with one party respecting this matter; (3) the family discontinued a regulatory negligence action against the Crown; and (4) the family is continuing to pursue other parties who caused or contributed to the leachate contamination on their property. More legal activity is anticipated in 1998 as this complex and precedent-setting litigation continues to unfold.

Hydro-Quebec v Attorney General of Canada

CELA was successful in intervening in a case before the Supreme Court of Canada with Sierra Legal Defence Fund (SLDF) as co-counsel, on behalf of Pollution Probe, CELA, SLDF and Great Lakes United. The case involved a constitutional challenge to the Canadian Environmental Protection Act (CEPA) by Hydro Quebec.

Hydro Quebec was charged under CEPA for releasing PCBs into a waterway in Quebec. The company then challenged the constitutional validity of the provisions in the lower courts with leave being granted to the Supreme Court of Canada. The factum for the intervenors was submitted in July of 1996 and the case was argued in February of 1997. On September 18, 1997, the Supreme Court released its decision which supported the position of the intervenors by confirming the federal role in protecting the environment as defined in CEPA. The decision is of profound importance to environmental law. Not only does it support the present division of legislative powers between federal and provincial governments, but it extends federal jurisdiction over the environment by expanding the federal criminal law power. This case is both precedent-setting and fundamentally important in ensuring that the federal government maintains a regulatory role in environmental protection. (See Intervenor v.22 no.4, print only, for selected quotes from the decision.)

Edward Lang et al v Goodyear Canada Inc & Crowe et al.

CELA serves as counsel for the plaintiffs who reside in Belleville, Ontario. In the early 1970s drums containing toxic waste were buried near the plaintiffs' property. Over the years the drums started leaking, thereby discharging hazardous waste into the ground and groundwater causing ground water contamination. The plaintiffs relied on wellwater and used the water for drinking and bathing purposes until advised not to do so by the Ministry of Environment. In 1994, CELA commenced a lawsuit on behalf of the plaintiffs for trespass, nuisance and negligence. In mid-July of 1997, CELA brought a motion seeking production of a Crown Brief which consisted of approximately 5000 pages of documents relating to Criminal Code charges against the defendant Goodyear Canada Inc. The defendants then brought a motion in the Ontario Court (General Division) to quash the plaintiffs' motion. Cross-examinations were done on affidavits filed by both CELA's clients, as well as Goodyear Canada Inc. with respect to the motion to quash. The motion was dismissed by the Court and CELA clients were awarded costs.

Oliver and London OPA 88

CELA continues to serve as counsel for a London resident who appealed certain portions of a major Official Plan Amendment (OPA) to the Ontario Municipal Board. The primary grounds for the appeal are that the OPA does not adequately protect natural heritage values and does not encourage compact urban form or sustainable growth and development patterns. This matter is viewed as an important test case under Ontario's new land use planning regime, as amended by Bill 20. The OMB hearing is continuing at this writing (June 1998).

Harvard v Commissioner of Patents

CELA was denied leave to intervene in this case, in which Harvard University appealed the decision of the Canadian Commissioner of Patents, to the federal court of Canada. The Commissioner refused Harvard a patent for its genetically-altered mouse, and any other mammals similarly modified.Harvard had already received a patent in the US for its "onco-mouse" (a mouse genetically altered for research purposes to be pre-disposed to cancer). CELA then appealed the refusal of leave to intervene but was unsuccessful. The federal court rejected Harvard's application.

Ricker v Director, MoE

CELA represents the Rickers in their appeal of a provincial permit to take water issued to Dunnville Rock Products. The de-watering caused an insufficient water supply to the Rickers' property and, in particular, depleted the water levels of their fish pond. CELA appealed the water taking permit. The Environmental Appeal Board granted the leave to appeal in this matter and a hearing will be held this year. (See Intervenor v.22 no.5&6, print only, for more information.)

It should be noted that since the proclamation of the Environmental Bill of Rights (EBR), the Environmental Appeal Board has reviewed approximately fourteen applications for leave to appeal. However, the Board has only granted leave to appeal on three cases. CELA has represented the applicants on two of these cases.

South Riverdale Community Health Centre

CELA continues to serve as counsel for the South Riverdale Community Health Centre (SRCHC) regarding lead-related litigation between the Crown and the Canada Metals Company. The Crown commenced an $11 million lawsuit against the company to recover the cost of removing lead-contaminated soil and dust from approximately 1,000 residential properties in the South Riverdale community. When these parties decided to settle the litigation in 1996, CELA and other representatives of the SRCHC intervened in the negotiation process to ensure that the community's concerns and interests were taken into account as the settlement package was finalized. In addition, CELA filed an Application for Review under the Environmental Bill of Rights seeking the revocation of the statutory approvals for the company's unused blast furnace, which had been a major source of lead contamination. While the Ministry denied the Application for Review, it did revoke the approvals soon after, a move that led Eva Ligeti, Ontario's Environmental Commissioner to conclude in her 1996 Annual Report that "the Ministry had already started negotiations with the company about revoking the unused certificates, and it looks like the Application helped move those talks along.", see related information below. (For more on this story, see South Riverdale article, in related information, below). 

CANE takes on Plastimet

CELA represented the Hamilton citizens' group CANE (Community Action, North End) in preparation for public hearings before the Environmental Appeal Board (EAB) dealing with the clean-up of the Plastimet fire in July 1997. Plastimet, its president, Jack Lieberman, and the owner of the land leased to Plastimet, Frank Levy, had appealed Ministry of Environment orders to pay for clean-up costs (Lieberman was also appealing an MoE order to clean up the site). At a pre-hearing conference before the EAB, CANE was given party status and would therefore have been able to participate fully - leading evidence, undertaking cross-examination and having the same right of appeal as the other parties (the MoE and the appellants). However, the appellants withdrew their appeal on the eve of the public EAB hearing and have since plead guilty to permitting a discharge of a contaminant (dioxins, furans, and benzene from burning 400 tonnes of PVC plastic) into the environment, a charge under the Environmental Protection Act). Plastimet, Lieberman and Levy were fined a total of $270,000; Lieberman and Levy were ordered to do 50 hours of community work each. Cost of the clean up will exceed $1.5 million. CANE remains active in its community, see related information below.

Braeker v MoE

CELA is acting for Karl and Vicki Braeker who have been fighting an illegal tire dump in Egremont, near Durham, Ontario for almost a decade. Their neighbour dumped 33,000 scrap tires on his property, about 200 metres from the Braekers' home and water supply. In January 1991, the Ministry of the Environment (MoE) permitted the tires to be buried in order to eliminate a potential fire hazard. Eight years later, in June 1998 the Ministry, prodded by CELA and the Braekers, finally began digging up the tires, but left the contaminated trench water - water that the MoE's own tests revealed to be polluted with cresols, manganese, cobalt, diphenylamine, and NDMA (a carcinogen). The former owner of the property has been convicted of owning an illegal waste dump and failing to comply with an MoE order to remove the tires. He has disappeared, see related information below. 

Adams Mine, Kirkland Lake

CELA is serving as counsel for the "Adams Mine Intervention Coalition", which consists of eight local and regional organizations concerned about Notre Development Corp.'s proposal to establish a landfill at the Adams Mine site near Kirkland Lake. Notre intends to import approximately 20 million tonnes of waste from the GTA (Greater Toronto Area) and deposit it into a 600 foot deep pit at the mine site. The Coalition participated as a full-time party in a recent Environmental Assessment Board hearing regarding this proposal. Due to certain restrictions imposed by the Minister of Environment, the hearing was limited to examining whether the proposed leachate collection system would be effective in protecting local groundwater and surface water resources.

In June 1998, the Board, in a split decision, gave conditional approval to the Notre proposal. CELA acted as counsel for the Coalition and presented expert evidence indicating that leachate contaminants may indeed leak beneath the unlined pit due to the presence of certain geologic structures(fractures, faults and dykes) below the pit.

To resolve the "battle of the experts", the Board ordered Notre to drill 2 deep angled boreholes under the pit and to forward the results to the Director at the Ministry of the Environment. Disposal of waste at the pit is prohibited unless the Director concludes, "without reservation," that the borehole results show that leachate can be contained on-site over the 1,000 year contaminating lifespan of the landfill.

In dissent, one Board member rejected the Notre proposal on several grounds: the site lacked any natural protection and the design was entirely dependent on engineered works. He disavowed the borehole compromise, because he said such drilling, under a 27 hectare pit in fracture rock, would not constitute effective monitoring.

CELA, under instruction from the Coalition, is pursuing appeal options. Stay tuned to the Intervenor for updates.

Fournier Action Committee, Cochrane

CELA is serving as counsel for the "Fournier Action Committee", which consists of residents in the unorganized Township of Fournier near Cochrane. The Town of Cochrane has proposed to establish a new landfill site on 78 hectares of Crown land in Fournier Township. CELA's client is concerned about the potential impacts of the proposed landfill on groundwater, surface water, wildlife, natural resources, and nearby residents. On behalf of the residents, CELA has actively participated in the environmental assessment process, and has requested that the proposal be referred to the Environmental Assessment Board for a public hearing. The Minister of Environment's decision on the hearing request is expected shortly.
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Kathleen Cooper is a researcher at CELA